Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals (In re Columbus Bituminous Concrete Corp.)

114 N.E.3d 621, 2018 Ohio 2706
CourtCourt of Appeals of Ohio, Fourth District, Pickaway County
DecidedJune 5, 2018
DocketNo. 17CA15
StatusPublished
Cited by2 cases

This text of 114 N.E.3d 621 (Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals (In re Columbus Bituminous Concrete Corp.)) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Fourth District, Pickaway County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals (In re Columbus Bituminous Concrete Corp.), 114 N.E.3d 621, 2018 Ohio 2706 (Ohio Super. Ct. 2018).

Opinion

Hoover, P.J.

{¶ 1} After the Harrison Township Board of Zoning Appeals ("board") denied *624the application of Columbus Bituminous Concrete Corporation and Shelly Materials, Inc. (collectively referred to as "CBCC") for a conditional-use zoning certificate to operate a sand and gravel quarry in Harrison Township, CBCC appealed the decision to the Pickaway County Court of Common Pleas under R.C. Chapter 2506.

{¶ 2} The common pleas court denied CBCC's appeal and affirmed the board's decision denying its application for a conditional-use zoning certificate because: (1) the board properly considered Section 9.03 of the Harrison Township Zoning Resolution, as allowed by R.C. 519.141, in denying CBCC's application; and (2) substantial, reliable, and probative evidence was introduced at the board's proceedings to support the board's findings that some sections of Section 9.03 of the zoning resolution were not met. The court also granted CBCC's motion to strike a binder containing evidence and argument submitted by Berger Health System ("Berger Health") in the board proceedings because it was not considered by the board in its decision.

{¶ 3} On appeal, CBCC asserts that the common pleas court erred by failing to limit its review of its request for a conditional-use zoning certificate for sand and gravel mining to criteria that are "only in the interest of public health or safety" and "matters that are [not] regulated by any federal, state, or local agency" as required by R.C. 519.02 and 519.141(A). We conclude that the court, the board, and Berger Health properly relied on a reading of R.C. 519.141(A) that comports with its plain language: that the board "may require as a condition of the approval of a conditional zoning certificate for such an activity compliance with any general standards contained in the zoning resolution that apply to all conditional uses that are provided for in the zoning resolution * * *." That is, the board of zoning appeals is authorized to treat compliance with general standards in a zoning resolution as a condition precedent to the approval of a conditional zoning certificate. Therefore, Sections 9.03(B), (E), and (F) of the township zoning resolution could be considered by the board to deny CBCC's application for a conditional zoning certificate for sand and gravel mining on its property.

{¶ 4} CBCC next claims that the common pleas court's decision is not supported by a preponderance of substantial, reliable, and probative admissible evidence as a matter of law. We reject this claim because our review of the record establishes that the common pleas court's decision was supported by a preponderance of reliable, probative, and substantial evidence. We overrule CBCC's first and second assignments of error and affirm the judgment affirming the board's decision denying CBCC's application for a conditional-use zoning certificate.

{¶ 5} On cross-appeal, Berger Health contends that if the court reverses the common pleas court's judgment, we should consider its claim that the common pleas court erred by granting CBCC's motion to strike its binder of evidence and argument from the administrative record. Because our affirmance of the court's judgment on the merits renders the cross-appeal moot, we need not address it.

I. Facts and Procedural Posture

{¶ 6} Columbus Bituminous Concrete Corporation owns 178.9 acres of land in Harrison Township, Pickaway County, Ohio that Shelly Materials, Inc. wants to mine for sand and gravel. The property is zoned General Business District and Flood Plain Overlay District, and the township zoning resolution permits quarrying and mining as conditional uses in the General Business District.

*625{¶ 7} CBCC applied for a conditional zoning certificate to use the property for sand and gravel surface mining at a quarry on Weigand Road in Harrison Township. The property is bordered on the north by property owned by the city of Columbus that is vacant and zoned Agricultural District, on the east by property owned by Davon, Inc., that is zoned Agricultural District and Flood Plain District and contains a concrete batch plant, on the south by property owned by Berger Health that is zoned and used as an Agricultural District, and on the west by U.S. 23 and beyond the highway by property that is zoned Agricultural District. The Pickaway County Engineer approved CBCC's proposed ingress and egress to the mining site and concluded that the road improvements should be sufficient to accommodate the additional truck traffic related to the quarry and also vastly improve the safety of the nearby intersection of Weigand Road and U.S. 23. The Pickaway County Commissioners adopted the engineer's approval of the proposed ingress/egress improvements to the quarry site.

{¶ 8} The board conducted a hearing on CBCC's application. CBCC presented the testimony of several individuals, who testified that: (1) the mining operation will include mounds that will act as sound, sight, and safety barriers from adjoining property; (2) spill-protection plans for the project will be monitored by the Ohio EPA; (3) roughly 180 truck trips a day are estimated for the project; (4) the project will adhere to all federal, state, and local regulations; (5) the dust from the operation will be regulated by the Ohio EPA and mitigated by using water; (6) the project will not have any effect on the level or quality of nearby residential wells; (7) the project will not cause a rise in the 100-year floodplain; (8) the project, with its included mounds, would not increase the noise level of the surrounding area; and (9) the project complies with all applicable standards of the township zoning resolution.

{¶ 9} A Berger Health representative testified that the plan conflicted with the North Gate Alliance Strategic Land Use Plan and was at odds with its own plans for the future development of land they owned to the south of the CBCC property. An engineer testified that he believed that another hydraulic and hydrologic study was required to test the impact of the proposed mining upstream. And an economic development director testified that the proposed mining would violate the North Gate plan by disrupting planned north-south access roads that would run parallel to U.S. 23 and exit onto Weigand Road and not limiting gravel quarrying to the west side of U.S. 23. At the conclusion of the hearing, the board denied CBCC's application without stating any findings. In a written decision mailed almost two weeks later, the board of zoning appeals stated that "[a]fter considering all of the evidence submitted to the [board], the [board] determined that applicant was unable to affirmatively prove all the requirements of Section 9.03 of the Harrison Township Zoning [Resolution]."

{¶ 10} CBCC timely appealed the denial of its application for a conditional zoning certificate to the Pickaway County Court of Common Pleas pursuant to R.C. Chapter 2506. It named the board of zoning appeals, the township zoning inspector, Harrison Township, Berger Health, and two individuals as appellees. After the parties submitted briefs and CBCC moved to strike a binder submitted by Berger Health at the final board hearing, the court issued a decision granting the motion to strike and affirming the decision of the board.

{¶ 11} The trial court concluded that under R.C. 519.141(A), the board of zoning *626

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Bluebook (online)
114 N.E.3d 621, 2018 Ohio 2706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbus-bituminous-concrete-corp-v-harrison-twp-bd-of-zoning-appeals-ohctapp4pickawa-2018.